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Discovery Reform

GavelDiscovery rules that leave defendants in the dark about the evidence against them undermine fairness and due process and increase the risk of wrongful convictions. Criminal discovery can be divided into two categories: (1) disclosure of so-called “exculpatory evidence” that is constitutionally required under the Supreme Court’s 1963 Brady opinion and (2) disclosure that is required by statute or court rule. There is great variation among jurisdictions regarding the amount of discovery required by statute/rule and even the Brady decision, with the federal system and most states allowing prosecutors to withhold evidence needed by the defense. To encourage reforms, NACDL has adopted two model bills: one prescribing open-file discovery and another clarifying the Brady rule by requiring the disclosure of all favorable evidence.

Federal Criminal Discovery Blue Book

NACDL is seeking disclosure of the Justice Department’s Federal Criminal Discovery Blue Book.  This publication reportedly covers the law, policy, and practice of prosecutors’ disclosure obligations.  The U.S. Court of Appeals upheld the lower court’s decision that the publication is protected work product but remanded for a determination of whether any non-protected contents were segregable.  See the pleadings.

Recently Released Report

Material Indifference CoverOn November 17, 2014, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. C-SPAN3's video coverage of the launch event is available here.

News Of Interest

"Analysis: Beyond ‘Brady’: The Ethical Implications When a Prosecutor Learns That an Officer Fabricated Evidence," by Tyler Maulsby, New York Law Journal, May 9, 2019.

"Texas Prosecutor Calls for Discovery Reform in NY State," by Julia Rubio and Linda Garza, New York Law Journal, February 11, 2019.

"Criminal discovery reforms delayed in Virginia; police body cameras blamed," by Rachel Weiner and Laura Vozzella, Washington Post, January 29, 2019.

"Discovery Reform is Long Overdue," by Seymour James, New York Law Journal, December 18, 2018.

"Prosecutorial Misconduct Commission Will Only Be as Strong as Underlying Disciplinary Rules—And That’s a Problem," by Rory I. Lancman and Rachel Graham Kagan, New York Law Journal, December 12, 2018.

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